Ethics Opinions

WITNESSES - Where a psychiatrist has been
subpoenaed to testify as a witness at a trial for the purpose of
giving fact testimony, and not an expert opinion, and he does
attend the trial, the lawyer for the party causing the subpoena to
be issued may properly advance to the witness the statutory witness
fee and the expenses necessarily incurred by the witness in
attending the trial, provided the party has previously agreed to
repay such fee and expenses to his lawyer.

The Ethics Committee of The Mississippi Bar has been requested
to render an opinion on the following facts:

The lawyer in question represented the husband in a
divorce action. The husband wished to subpoena the wife's
psychiatrist for the purpose of obtaining fact testimony, and not
an expert opinion. Prior to trial, the husband's lawyer attempted
unsuccessfully to reach the psychiatrist by telephone, in order to
coordinate his appearance in court. A subpoena was served on the
witness, but he failed to appear at the trial. An attachment was
then issued for him, and the sheriff brought the witness to the
courthouse. However, by the time the witness appeared in court, the
issues requiring his testimony had been settled between the
parties, and he was excused without ever having testified.
Subsequently, the witness sent a bill to the husband's lawyer for
"court appearance" in the sum of $300.00. The trial was held in
Pascagoula, and the witness's office was in Gulfport. The husband's
lawyer wants to know how to advise his client with regard to the
bill, and what obligations the lawyer has to the witness.

At the outset it should be stated that this committee does not
render opinions on questions of law. The Committee is of the
opinion that whatever liability the client in this case may have to
the witness in question would be a question of law, and, therefore,
outside of our jurisdiction. We are further of the opinion that
whatever legal obligation the lawyer in this case may have to the
witness with regard to the bill for the court appearance is also a
legal question, which we decline to address. However, the narrower
question of what course of action the lawyer may ethically be
allowed to take concerning the witness's bill for services is, we
believe, a question that we are authorized to deal with, and this
opinion will, therefore, be limited to that one issue.

There is an abundance of authority empowering the Mississippi
courts to issue subpoenas requiring the attendance of witnesses.
Subpoenas shall be served personally, and the person so subpoenaed
shall appear. Mississippi Code of 1972, Ann. Section 13-3-101. The
Chancery Court has the power to issue subpoenas for witnesses,
which witnesses have the duty to attend court according to the
command of the process. Mississippi Code of 1972, Ann. Section
9-5-85.

The pertinent provision, in the Rules of Professional Conduct
reads as follows:

A lawyer shall not:

(b) Falsify evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness that is
prohibited by law; . . . .

Rule 3.4(b) M.R.P.C. The Comment to this rule states the
following:

With regard to paragraph (b), it is not improper to
pay a witness's expenses or to compensate an expert witness on
terms permitted by law. The common law rule in most jurisdictions
is that it is improper to pay an occurrence witness any fee for
testifying and that it is improper to pay an expert witness a
contingent fee.

Comment to Rule 3.4(b) M.R.P.C.

It will be noted in the aforesaid comment that occurrence
witnesses and expert witnesses are treated differently, as far as
the payment of fees and compensation is concerned. Therefore, it
becomes necessary to determine whether the witness in this case is
an occurrence witness or an expert. The factual summary states that
the witness is a psychiatrist, who, being a graduate of medical
school, could probably be qualified as an expert. However, we are
also advised that the psychiatrist was to be used only for the
presentation of factual testimony, and he was not to give an expert
opinion. Where a witness is a professional or skilled person, but
he only gives factual testimony, he is limited to the statutory fee
allowed to ordinary occurrence witnesses. 31 Am.Jur.2d Expert &
Opinion Evidence, Section 10. The right of a witness to
compensation is purely statutory, and he may receive no
compensation beyond that provided by statute. 81 Am.Jur.2d
Witnesses, Section 23. Based on the above, the Committee is of the
opinion that the psychiatrist in this case should be considered to
be an occurrence witness, and that the husband's lawyer may be
allowed to pay to the witness his expenses and any statutory fee
allowed for such witnesses.

We now consider the nature of the expenses and the amount of the
statutory fee, if any, that the lawyer may pay to this witness. In
Mississippi witnesses in the county, circuit and chancery courts
shall receive $1.50 per day and $.05 per mile for traveling from
their homes to the courthouse and back again. Mississippi Code of
1972, Ann. Section 25-7-47. The party causing the subpoena to be
served on the witness is liable for the payment of such fee and
mileage to the witness. Mississippi Code of 1972, Ann. Section
25-7-51. In view of the fact that the statute providing for a
mileage allowance of $.05 per mile was adopted a number of years
ago when the cost of transportation was much lower than it is
today, and in view of the Comment to Rule 3.4(b) M.R.P.C. allowing
the payment of a "witness's expenses", the Committee is of the
opinion that the payment of a mileage figure more realistic for
today's economy is permissible. The Committee is also of the
opinion that any reasonable costs incurred by the witness for meals
and lodging are considered to be expenses of a nature that the
lawyer may pay to the witness. The Committee further believes that
a witness's loss of time because of attending or testifying is an
expense for which he may be paid by the lawyer. In summary, the
lawyer may pay to this witness the statutory witness fee, plus
reasonable expenses incurred for mileage, meals and lodging, plus
reasonable compensation for his loss of time in attending or
testifying.

Finally, we come to the question of whether the client must
ultimately be responsible for the payment of the witness's fee and
expenses. Rule 1.8(e) provides that:

A lawyer shall not provide financial assistance to a
client in connection with pending or contemplated litigation, or
administrative proceedings, except that:

(1) a lawyer may advance court costs and expenses of
litigation, including but not limited to reasonable medical
expenses necessary to the preparation of the litigation for hearing
or trial, the repayment of which may be contingent on the outcome
of the matter.

Therefore, the lawyer may advance the payment of the witness's
fee and expenses.